Legal Studies Research Paper Series Vol. 8, No. 10

The Faculty has published Volume 8 Number 10 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Rumiana Yotova: Challenges in the Identification of the ‘General Principles of Law Recognized by Civilized Nations’: The Approach of the International Court (38/2017)

This article reassesses the legal character of 'the general principles of law recognized by civilized nations', being one of the two unwritten sources of international law. The general principles of law are, however, the most controversial source of international law and have continued to divide the opinions of scholars and judges alike since their inception. Some view them as private law analogies, others as emanations of natural law and there are those who conflate them with custom. This article it seeks to identify the appropriate methodology for ascertaining the existence of the controversial 'general principles of law'. It does so by going back to the preparatory works of Article 38(1)(c) of the Statute of the ICJ and then critically assessing the practice of states and the case law of the Court on identifying general principles. It will be argued that general principles of law are an important source of international law in their own right with a systemic function in the international legal order and a distinct methodology for their ascertainment. Three categories of general principles will be distinguished based on the nuanced methodologies for their ascertainment applied by the ICJ and its predecessor, namely, general principles of international law, general principles of domestic law and general principles of procedural law.

Antje du Bois-Pedain: In Defense of Substantial Sentencing Discretion (39/2016)

This article develops an ideal of sentencing discretion as consisting in sufficient dispositional flexibility for the trial judge to set, on behalf of the polity, reasonable terms for the continuance of relations with the offender in view of his crime. This ideal requires trial judges to have what may be termed "substantial" sentencing discretion: discretion that is exercised with direct reference to the values and goals penal sanctions are expected to serve, and where it is this quality of value-based engagement that provides the justification for the decision. The article engages with empirical research into sentencing that helps us address the strength of the case for and against substantial sentencing discretion, and ultimately defends substantial sentencing discretion on functional as well as ethical-political grounds.

Krzysztof Kornel Garstka: From Cyberpunk to Regulation – Digitised Memories as Personal and Sensitive Data within the EU Data Protection Law (40/2017)

Every new medium through which information can be communicated is likely to bring new challenges for the established data protection laws and paradigms. In the light of progressing research aimed at deciphering the human brain, this article seeks to analyse the General Data Protection Regulation’s ability to respond to the possible appearance of memory digitisation technology. To this end, the article draws on the fictional setting of a PC game entitled Remember Me, where such a technology was developed and embraced by the society. In an exploratory analysis, the GDPR's definitions of personal and sensitive data are put to a test of their ability to remain "technology-neutral" in the face of an information technology capable of identifying individuals in unique and unprecedented ways. The article confirms the Regulation’s preliminary potential to accommodate the studied invention and proposes an interpretation of the corresponding articles of the GDPR, aimed at the adequate protection of data subjects.

Nora Ni Loideain: Cape Town as a Smart and Safe City: Implications for Governance and Data Privacy (41/2017)

Promises abound that 'smart city' technologies could play a major role in developing safer, more sustainable, and equitable cities, creating paragons of democracy. However, there are concerns that governance led by 'Big Data' processes marks the beginning of a trend of encroachment on the individual’s liberty and privacy, even if such technologies are employed legitimately for the public's safety and security. There are many ways in which personal data processing for law enforcement and public safety purposes may pose a threat to the privacy and data protection rights of individuals. Furthermore, the risk of such powers being misused is increased by the covert nature of the processing, and the ever-increasing capacity, and pervasiveness, of the retention, sharing, and monitoring of personal data by public authorities and business. The focus of this article concerns the use of these smart city technologies for the purposes of countering crime and ensuring public safety. Specifically, this research examines these policy-making developments, and the key initiatives to date, undertaken by the municipal authorities within the city of Cape Town. Subsequently, the examination then explores the implications of these policies and initiatives for governance, and compliance with the right to data privacy, as guaranteed under international human rights law, the Constitution of South Africa, and the national statutory framework governing data protection. In conclusion, the discussion provides reflections on the findings from this analysis, including some policy recommendations.

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